Police officers walk past the Supreme Court of Pakistan building in Islamabad, Pakistan April 6, 2022. REUTERS
For the first time in Pakistan’s history, lawmakers can handpick who they want as the country’s chief justice, which, as you can imagine, poses a serious risk to the country’s judicial independence. Otherwise, the senior most judge of the Supreme Court tended to become the Chief Justice of Pakistan. It was a sacred rule that kept politics out of the courtroom.
But all that changed last October when Parliament rushed through a vote to amend the Constitution for the 26th time (that’s why it’s called the 26th Amendment). The new rules massaged the judicial system by giving parliament and the bureaucracy greater control over the appointment and evaluation of judges.
As you can imagine, this change has been challenged in court. Actually the Supreme Court. So now the top judges have to decide whether the new rules that apply to them are legal at all. It is the decision-makers themselves who stand before the court.
This is what talk shows after 8pm like to call a legal crisis. If politicians can choose the Chief Justice, you don’t have to be a constitutional lawyer like Hamid Khan (or the late Asma Jahangir) to see that this is very problematic. This is how the politicians could get a chief judge to rule in their favor in cases such as Super tax on companies.
If you want to go into more detail…
As you can predict, the 26th amendment was taken to court. Several petitions were filed. But it was not just a matter of hearing the petitions. What unfolded was perhaps one of the strangest legal twists in our history: Before the Supreme Court could even begin to discuss the merits of the 26th Amendment, its justices would ask whether they could even legally hear the case.
An eight-member bench headed by Justice Aminuddin Khan is hearing 36 petitions, including those filed by the PTI and the bar association, challenging how the amendment was passed. The petitioners claim it was approved “in the dead of night” without a two-thirds majority in parliament.
President of the Supreme Court Bar Association, Abid Zuberi, said the judges must decide “whether they can win by the law.” Judge Jamal Mandokhail remarked at one of the hearings: “It was not introduced by us – it was passed by Parliament, so don’t blame us.”
The main question is whether serving judges can decide the fate of the 26th Amendment.
Read: SC questions jurisdiction of Full Court under Article 191A in 26th Amendment case
Lawyers are divided into:
1. Should the petitions be heard by a full court of all 15 judges;
2. Should the petitions be heard by a constitutional court under the new law, or;
3. Should the petitions be heard by the 16 judges who served before the retirement of former CJP Qazi Faez Isa?
There is a principle that applies in the law: nemo judex in sua causa – no one should be a judge in their own case. As lawyer Abdul Basit Cheema put it: “Members of the current court are direct beneficiaries of the law being challenged. The case must go to a full court for both legal and moral legitimacy.”
Whatever the judges decide will tell Pakistan how much it can trust the Supreme Court in the future, said lawyer and researcher Simra Sohail. “Using provisions of a controversial law to determine one’s own fate reveals the fragile balance between law, politics and justice,” she added.
How it changes the courts
Earlier, the senior Supreme Court judge automatically became the CJP. Under the new system, a 12-member special parliamentary committee consisting of eight MNAs and four senators selects one of the three chief justices. The Prime Minister forwards the name to the President for approval and the term of the CJP is now fixed at three years.
The JCP now includes lawmakers and a technocrat, giving the executive greater influence over judicial appointments and performance reviews.
“They have made sweeping changes to how the judiciary works,” said The Express Pakinomist’s senior court reporter Hasnat Malik, who has attended the hearings. “Cases of public interest will now go before constitutional benches chosen by the JCP. Over the last year, much of the control has shifted to the executive.”
Motive debate
At the latest hearing, senior advocate Akram Sheikh argued that the amendment was aimed at protecting the February 2024 general election from judicial scrutiny.
“There was apprehension that the Supreme Court might probe the election once Justice Isa retired,” he told the eight-judge Constitutional Court headed by Justice Aminuddin Khan. He added: “The case must go to a 24-member full court. That is the only way to ensure justice.”
Sheikh said the amendment “was framed to ensure that accountability could be avoided” and that the current bench “cannot possibly cut the branch it is sitting on.”
Observers link the amendment to the ruling coalition’s concerns over the reserved seats issue. The government delayed notifying Justice Mansoor Ali Shah as a senior judge until the change took effect, then used the new system to nominate Justice Yahya Afridi, third in seniority, as chief justice.
Since then, benches formed under the new law have handed down judgments in favor of the government, including upholding civilian trials in military courts, approving judicial transfers and overturning the Supreme Court’s judgment on reserved seats on 13 July, enabling the coalition to secure a two-thirds majority in the National Assembly.
Political background
The change was adopted in October 2024 after intense negotiations. Maulana Fazlur Rehman of the JUI-F mediated between the coalition partners while the PTI boycotted the vote. The PPP and JUI-F supported key changes and abandoned a proposed Federal Constitutional Court in favor of constitutional benches.
Read more: Bilawal warns against overturning 26th amendment outside parliament
Prime Minister Shehbaz Sharif called the reform “historic” and said: “No institution will be above parliament anymore.” But opposition leader Omar Ayub Khan described it as “the biggest rollback of judicial independence since 1973.”
Law Minister Azam Nazeer Tarar said it would “restore the balance” after years of judicial abuse, but lawyer Aitzaz Ahsan warned it was “a step towards executive control of the judiciary.”
Backlash
The PTI, Bar Council and civil society lawyers claim that the amendment violates Articles 175 and 191 by undermining the separation of powers. SCBA president Abid Zuberi called it “an attack on judicial independence.” Former CJP Jawad S Khawaja, through lawyer Khawaja Ahmad Hosain, said it “neutralized the legal oversight of the executive.”
In mid-2025, a new lawyers’ movement led by Aitzaz Ahsan, Hamid Khan, Latif Khosa, Mustafa Nawaz Khokhar, Munir A Malik and Imaan Mazari took to the streets. Mazari said: “Justice has disappeared from both the courts and parliament. This fight must now be taken to the streets.”
Read also: SC considers formation of full court amid 26th constitutional amendment challenge
Pakistan’s 26th Constitutional Amendment Explainer [Source: Mehak Nadeem, Design: Ibrahim Yahya]
During the deliberations on the new Judges’ Code of Conduct, Justices Mansoor Ali Shah and Munib Akhtar warned in a letter that “any measure that restricts [judicial] independence or can weaponize to discipline, silence or control judges must be fiercely resisted.” They said the vagueness of the rules allows for “selective use” against dissenting judges.
Critics say the 26th Amendment, furlough policy and Article V, which attorney Faisal Siddiqi called “nothing short of gagging the judges,” centralize authority and “muscle” independent voices.
Barrister Asad Rahim Khan argued that these measures isolate judges “from their bar and society”, making judicial independence dependent on “an individual’s virtue or courage” rather than institutional safeguards.
Even the International Commission of Jurists warned that the reform “exposes the judiciary to political influence”. The ICJ warned that the amendment violates Article 14 of the International Covenant on Civil and Political Rights, which guarantees equality before an independent and impartial tribunal. Al Jazeera reported that it “shifts Supreme Court control to Parliament and juxtaposes opposition-leaning judges.”
Sheikh argued that if the amendment itself is invalid, then the constitution of the bench under it is also legally ineffective. “The judicial authority of the bench would cease to exist, which will render the constitutional bench legally illegitimate,” he said. In court he stated: “Fortunately the members of the bench would still keep their heads, but not their hats.”
